These laws govern divorces post 1986; the law concerning divorce before 1986 will be common law rules.

The Domicile and Recognition of Foreign Divorces Act, 1986

This Act covers divorces that were applied for post 1986 and the essential thrust of the legislation is that if either spouse was domiciled in the jurisdiction granting the divorce at the date of commencement of proceedings then that divorce will be recognised in Ireland. (Domicile is living in a place with the intention of residing in that place permanently).

Section 29 Family Law Act, 1995

If your circumstances are such that failing to prove that one of the parties was domiciled in the jurisdiction granting the foreign divorce then you might consider section 29 of the Family Law Act 1995.

This allows an application to be made in the Circuit Court or High court for a declaration that a foreign divorce is entitled to be recognised in Ireland. In fact you can seek various declarations concerning divorce, legal separations or annulments granted in foreign Courts.

However, do note that this procedure does not cover situations covered by the Brussels II regulation which states that foreign divorces in Brussels II countries are automatically entitled to recognition in Ireland.

United States Divorces

Generally each State or jurisdiction is treated separately for the purposes of recognition of a foreign divorce and this is very pertinent re the United States of America and American divorces.

United Kingdom Divorces

However the United Kingdom is an exception to this rule insofar as the UK is considered to be one state. The effect of this is that a divorce granted anywhere in the UK will be recognised in Ireland provided that one of the spouses is domiciled anywhere in the UK.

Exceptions to the recognition of foreign divorces in Ireland

There are a number of circumstances where a foreign divorce will not be recognised in Ireland including:

1. Non Judicial Divorces
Generally the divorce will have to have been obtained legally/judicially in the foreign jurisdiction.

2. Duress
If a spouse is pressurised or put under duress to apply for a divorce the subsequent divorce will not be recognised in Ireland.

3. Fraud
If a foreign divorce is obtained by fraud it will not be recognised in Ireland as a valid divorce decree.

4. Denial of justice
This is a wide, catch all type of category which affords considerable discretion to Irish Courts in recognising (or not) foreign divorces.

Brussels II BIS

This European Council Regulation replaced the original Brussels Regulation which provided for recognition of divorces, separations and nullities granted in other EU jurisdictions.

Brussels II BIS will apply where one of the spouses resides in or is a national of another EU member state and the principal aim of this regulation is to recognise EU divorces on an EU wide basis. (Note: the question of domicile still applies between Ireland and the UK as outlined above)

In summary Brussels II BIS states that judgments given in competent courts in the EU in relation to separation, divorce or annulments should be recognised in all EU member states. However Brussels II BIS goes a step further in providing a voice for the child in these proceedings and ensures that if the child is not given an opportunity to be heard then any judgment under Brussels II Bis will not be valid or recognised.
Brussesls II Bis came into effect in Ireland in 2005.

Maintenance and foreign divorces

There are now procedures in place in Ireland to allow the enforcement of maintenance orders between countries thanks to the Rome convention and the New York convention and the Maintenance Act, 1994 coming into law in Ireland.

In addition the Family Law Act, 1995 provides for the application in Ireland for certain reliefs arising from a divorce obtained abroad.

Jurisdiction and service

The question of service of proceedings in foreign divorce proceedings is a critical one. Brussels II Bis provides that where there is a dispute as to which court will have jurisdiction that the first court in which the documents commencing proceedings is lodged will have jurisdiction. This can give you a significant advantage in your case, especially from a costs perspective.

Problems Arising from Non Recognition of Foreign Divorces

The big problem in relation to non-recognition of a foreign divorce is when you remarry-your new spouse may not have any entitlements as set out in the Succession Act, 1965 while your old spouse can benefit substantially.

However you can seek a Court Order in the Circuit Court in Ireland recognising your foreign divorce; if granted, your divorce will be recognised as valid in Ireland.
By Terry GorryGoogle+

The Guardianship of Infants act,1964is the principal piece of legislation governing the issues of access, custody and guardianship in Ireland.

Any guardian of a child can apply to Court to seek an order concerning these issues and the Court will be primarily guided by what is in the best interests of the child. An unmarried natural father can bring an application under the Guardianship of Infants Act, 1964 regarding custody and/or access.

Who is the guardian of the child?

The natural mother is automatically a guardian under Irish law; the father is also automatically a guardian if he is married to the mother at the time of birth or becomes a guardian on subsequent marriage after the birth.

However the natural father of the child, who is not married to the mother at the birth of the child, can apply to become a guardian under the Guardianship of Infants act,1964. (He can also become a guardian with the joint guardian with the consent and co-operation of the mother).

It is important to note that the unmarried father has the right to apply to become a guardian but not the right to be a guardian automatically.

The welfare of the child

Any application to Court in respect of guardianship, access or custody will be considered be having a look at what is in the best interests of the child. This welfare of child concept is necessitated by the 1964 act and welfare is looked at under a number of headings such as

The moral welfare (conduct of the parents is relevant only insofar as it affects the welfare of the child)

Religious welfare

Intellectual welfare (includes educational needs of the child)

Physical

Social (the capacity of the child to mix with and become part of the society in which they will be brought up)

Emotional

Capacity of the parent to care for the child

Wishes of the child but this will depend ont the age and level of understanding of the child and a Court is under no obligation to agree to the demands of a child in this respect

Keeping siblings together

Keeping siblings with the marital father where the mother is deceased.

Where there is a conflict between the welfare of the child and other considerations, the welfare of the child takes precedence.

Guardianship of children

Guardianship in Irish law is recognised as the duties and rights of the parent to make decisions in relation to the child’s upbringing, specifically in relation to education, religion and general global care/rearing, and decisions which must be made during the child’s lifetime relating to general lifestyle and development. It includes a duty to maintain and properly care for the child.

Who can be a guardian?

The natural mother is automatically a guardian of the child.

Whether the father is a guardian or not will depend on his relationship with the mother-if they are married he is automatically a guardian.

If they are not married he is not a guardian.

However he can become a guardian in two ways:

he can apply to Court under section 6A of the Guardianship of Infants Act, 1964 to be made a guardian or

a statutory declaration, with the mother’s agreement, in accordance with the Children Act, 1997 (Section 4)

The Guardianship of Infants Act, 1964 also allows the father and mother to appoint testamentary guardians by will or deed to act as guardians in their place after death.

A guardian then has rights to custody of the child, subject to any court order, will, or deed, and can act on behalf of the child in relation to property of the child, legal proceedings and so on.

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Unmarried fathers

Unmarried fathers are excluded from being automatic guardians of the child, unlike the natural mother. The Guardianship of Infants Act, 1964 gives the unmarried father the right to apply to Court to be appointed a guardian. This application will be judged on the circumstances of the case and the welfare of the child.

Custody

Custody is the right of a parent to exercise day to day care and control (physical) of the child. The married parents are automatically joint guardians and custodians of the child.

In the unmarried family, the mother is automatically the child’s guardian and sole custodian.

An unmarried father can apply for custody under the Guardianship of Infants Act, 1964 (Section 11(4)), even if he is not a guardian at the time.

The Children Act, 1997 makes provision for the father and mother to be appointed joint custodians. However, the reality is that the more likely scenario will be that one parent will have sole custody, generally the mother, and the other parent will have access. (Strictly speaking, the right to access is a right of the child in accordance with the UN Convention n the Rights of the Child)

In situations where married parents separate and sole custody is awarded to one parent, this does not mean that the non custodial parent is deprived of other rights that accrue as a guardian. The non custodial parent must still be consulted in relation to all aspects of the child’s welfare.

How to Apply for Custody

The application for custody is normally brought in the District Court and the procedure is the same as applying for maintenance or access (see further down the page for the procedure and the relevant form).

Basically, you use form 58.17 and serve it on the other party at least 14 days before the Court hearing date, unless the application has been certified by the District Court office as urgent. In this case, two days notice is required.

You then file the notice and a statutory declaration of service at least 2 days before the Court hearing date.

Access

The law considers that the right to access to a parent is in fact a right of the child; this is why an access to a child order will be decided by the Court whilst looking at what is in the best interests of the child.

Generally though it is very unusual for a Court to not grant a parent access to their child and may, where necessary, make a supervised access order to allow to this to happen where the circumstances demand it.

The Children Act 1997 gives rights of relatives to apply for access to a child. This includes grandparents and the extended family of the child as well as those who have acted in loco parentis to the child.

Access orders are not final and can be varied/changed on application to Court.

How to Obtain Access

The vast majority of access applications are made in the District Court.

The application involves filling out the appropriate form (form 58.17) and lodging it in the District Court office. They will issue the form and insert a date in the Notice for the Court hearing for your application.

You must serve this Notice of the application on the other party (the Respondent) at least 14 days before the Court date. However, if the application is certified as urgent by the District Court office, 2 days’ notice will be sufficient.

The Notice and a Statutory Declaration of Service (forms 10.1/10.2/10.3) must be lodged in the Court office at least 2 days before the Court hearing date.

You then attend Court to make your application. You may have instructed a solicitor to assist you or you can apply yourself if you feel comfortable doing so.

You may also be entitled to legal aid through the District Court Family Law Legal Aid scheme. If you are approved, you will have to make a small contribution to the cost of the solicitor. The solicitor will be paid directly by the Legal Aid Board a set fee set down in the family law scheme.

The principal law in Ireland in relation to the care of children is the Child Care Act, 1991. Incidentally a child is defined as a person under the age of 18 who has not married.

The Child Care Act provides that in any court proceedings concerning a child the Court must regard the welfare of the child as the principle guide in it’s decision making.

Depending on the age of the child, the Court will also have to have regard to the wishes of the child and the parents but the guiding principle is the welfare of the child.

The Child Care Act 1991 also sets out the role of the HSE in child care issues and under section 3 of Part III of the Act which places certain duties and obligations on the HSE in the whole area of child care. The HSE must also have regard to the wishes of the parents in carrying out it’s statutory duties.

High Court decisions have held that it is generally in the best interests of the child to be brought up in his own family so for this reason the intervention of the HSE to override the wishes of the parents has been limited to exceptional cases. Where the HSE feels intervention is necessary, it should first consider whether proper care could be given with the child staying within his/her family with the proper supports being provided by the HSE.

Voluntary care

Section 4 of the Child Care Act1991 allows the HSE to take a child into voluntary care with the consent of the parents where the child’s care and protection requires it.

Section 5 of the Act obliges the HSE to deal with homeless children and provide them with “suitable accommodation”.

Children in emergency situations

Both the HSE and the Gardai have extensive powers to protect children in emergency situations. Section 12 allows the Gardai to remove a child to safety where there are reasonable grounds for thinking that there are immediate and serious risks to the welfare or health of the child. When this occurs and the child is not returned to his/her custodian/guardian, the HSE is then obliged to make an application for an emergency care order in the District Court.

This emergency care order will see the child being placed in the care of the HSE for up to 8 days. An appeal to the making of an emergency care order does not stay the operation of the order made.

The HSE and care proceedings

Part IV of the Act covers the role of the HSE in situations where the child is thought to be in danger. If the HSE considers that a child is in need of care or protection it has a positive obligation to make an application to Court for either a care or supervision order.

Care orders

A care order places the child in the care of the HSE for so long as he remains a child or for a lesser period. The HSE then acts as a parent to the child and is obliged to promote the child’s welfare, health, and development.

Supervision order

A supervision order is a half way house measure-the Court can make a supervision order prior to deciding on the merits of making a care order and involves the HSE calling to the child’s house to check on the welfare of the child and to advise the parents about caring for the child.

A supervision order can only last for 12 months but further supervision orders can be sought by the HSE.

Parents can be guilty of a criminal offence if they do not comply with the supervision order.

Interim care order

An interim care order is a care order for a short period of time-up to 28 days-and is designed to protect the child in the short term. An interim order can be longer than 28 days if the parents or a person acting in loco parentis consents.

Guardian ad litem

The Child Care Act 1991 introduced into Irish law the “guardian ad litem” which is a court appointed person to represent the child’s interests in any proceedings under the Act; he/she is independent of both the HSE and the child’s parents.

The Accommodation and Care of Children in Care

The Child Care Act, 1991 sets out a number of options when a child has been placed in the care of the HSE.

These include:

Placing the child with a foster parent in foster care

Placing the child in residential care in a residential care home or children’s residential centre

Foster Care

A foster parent is a person other than a relative of a child who is taking care of the child on behalf of the HSE. The HSE maintains a panel of prospective foster parents.

Before placing a child with foster parents, except in an emergency situation, the HSE is obliged to have an assessment of the child carried out to ensure that the child’s individual circumstances and needs are identified and appropriate care is provided.

The HSE is obliged to promote the welfare of the child in foster care and must have regard to the rights and duties of the parents.

A panel of prospective foster parents to be created and maintained by the HSE

Assessment of the circumstances of the child

A contract between the foster parents and the HSE

The requirement for the HSE to prepare a care plan for the child, before placing her in care

A register containing details of children in care

An up to date case record of every child in foster care

A fostering allowance payable to foster parents

The duties of the foster parents

The supervision requirements placed on the HSE in respect of children in foster care

A regular review of each child care case and the plan for the care and upbringing of the child. This review must take place at least once a year and once every six months during the first two years of care. This review also requires the HSE to ascertain whether returning the child to the parents’ care would be in the child’s best interests. In carrying out such reviews, the HSE is obliged to take into account any views of the child, the parents, the foster parents, and any other person consulted in relation to the review

The removal of the child from foster care, either at the request of the foster parents or where the HSE intends reuniting the child with his parents

The decision as to whether to place the child in residential care or foster care must be taken in the light of the individual needs and the circumstances of the child. Regardless of whether the child is in residential care or foster care the HSE is obliged to facilitate reasonable access by the parents/guardians or anyone with a bona fide interest in the child (Child Care Act, 1991, section 37).

Access to Children in Care

Section 37 of the Child Care Act, 1991 states:

37.—(1) Where a child is in the care of a health board whether by virtue of an order under Part III or IV or otherwise, the board shall, subject to the provisions of this Act, facilitate reasonable access to the child by his parents, any person acting in loco parentis, or any other person who, in the opinion of the board, has a bona fide interest in the child and such access may include allowing the child to reside temporarily with any such person.

(2) Any person who is dissatisfied with arrangements made by a health board under subsection (1) may apply to the court, and the court may—

(a) make such order as it thinks proper regarding access to the child by that person, and

(b) vary or discharge that order on the application of any person.

(3) The court, on the application of a health board, and if it considers that it is necessary to do so in order to safeguard or promote the child’s welfare, may—

(a) make an order authorising the board to refuse to allow a named person access to a child in its care, and

If someone is not happy with the arrangements in relation to access he/she can apply to Court for the appropriate directions.

Generally, in relation to access to children in care, two principles prevail:

The welfare of the child

Access to parents and other relatives should be considered to be in the best interests of the child, unless proved otherwise.

Termination of Care

Termination of a child in care occurs where:

The child reaches the age of 18 years as he is no longer a child in accordance with the Child Care Act, 1991

A child has been placed in care voluntarily by parents and they resume care and custody

A Court discharges a care order

Where a care order expires and is not renewed.

The HSE can also remove a child from a placement.

Any person may apply to the Court for directions where a child is in the care of the HSE.

After a child reaches the age of 18, even though he is no longer a child, the HSE can continue to make provision for a child formerly in its care until he reaches the age of 21. This can include making provision for visits to the child, arrangements for completion of the child’s education, placing the child in a trade, or arranging appropriate accommodation.

The Child Care Act, 1991 allows the family law Court to vary or discharge any care/supervision order. Any person can also apply to Court to have orders discharged or varied as set out in section 22 of the Child Care Act, 1991.
By Terry GorryGoogle+

Domestic violence in Ireland was first recognised on the statute books in the Family Law (Maintenance of Spouses and Children) Act, 1976 with the introduction of the first civil remedy for domestic violence.

This act introduced the notion of a “barring order” which is a court order excluding the violent partner/spouse to be excluded from the home.

Domestic Violence Act, 1996

The Domestic Violence Act, 1996 built upon this legislation of 30 years before and sets out three main aims:-

To protect spouses and children and others in domestic relationships whose safety and welfare is at risk in the relationship;

To increase the powers of the Gardai to arrest witout warrant in certain situations;

To allow a Court to hear other related applications, such as for maintenance, custody and access, at the same time as the application for a barring order.

This legislation builds upon the protection offered by the Family Law (Maintenance of Spouses and Children) Act, 1976 to provide protection for non-spouses such as cohabitants and family members.

Domestic violence remedies

It also extended the range of remedies available in cases of domestic violence to include

A barring order

An interim barring order

A protection order and

A safety order.

Barring order

A barring order is an order which directs the respondent to leave the premises where the applicant lives and preventing the respondent from returning to the premises until the Court allows. In making a barring order the Court must be satisfied that the safety or welfare of the applicant justifies making the order.

A barring order can last for up to 3 years.

An applicant for a barring order who is not a spouse must have an equal or greater interest in the property than the respondent. In addition to this test the couple must have lived as “husband and wife” for 6 months out of the previous nine months period.

In summary there are 4 types of people who can apply for a barring order:-

A spouse

Cohabitants who have lived together for 6 out of the previous 9 months

A parent of an adult child who is a non-dependent

The Health Service Executive on behalf of an entitled person.

Interim barring order

An interim barring order is one which a Court can make to cover the period of time between the commencement of legal proceedings and the hearing of the action. The criteria to be applied by a Court is whether the applicant is in immediate risk of significant harm and the granting of a protection orderwould not be sufficient to protect the applicant.

An interim barring order can be applied for on an ex parte basis but will be limited in duration to a maximum of 8 working days in the interests of fair procedure (Domestic Violence (Amendment) Act, 2002).

Protection order

A protection order does not put the respondent out of the family home but does order him/her not to use violence, threats, molestation or use violence against the applicant. A protection order will only last until the hearing of the barring or safety order proceedings and are available to anyone who has commenced proceedings for a safety or barring order.

Safety order

A safety order is similar to a protection order but does have a life of it’s own and can last for up to 5 years.

There are two common situations where a safety order is useful:

Where the applicant is trying to help the respondent deal with, for example, alcoholism but also wishes for protection from violence and

Where spouses are separated in fact but have not yet applied for a divorce or separation.

Safety orders can be applied for by

Spouses

Cohabitants who have lived together for 6 out of the previous 12 months (this was changed in 2011-see below)

The parents of an adult child

The HSE.

Breach of Barring Orders

The Domestic Violence Act, 1996 makes provision for a number of useful powers of the Court in domestic violence cases.

These include

1. How breaches of Court orders can be dealt with quickly by the Gardai
2. How the Court can deal with related issues such as access and maintenance without the need to issue new proceedings
3. How any Court Orders take effect.

Breaches of Court Orders

The Gardai have considerable powers of arrest under the Domestic Violence Act, 1996 to enforce Court orders along with their normal powers under various other acts such as Criminal Damage Act, 1991. They can arrest without warrant for example where the victim is someone who could apply for a barring order or safety order.

They also have a duty to investigate and record all reports of incidents of domestic violence.

Related proceedings

Courts have the power to deal with access and maintenance along with the substantive issue of a barring order application without the need to issue separate proceedings in respect of access and maintenance.

Generally the guiding principle for the Court in determining access is what is in the best interests of the child. However where there are issues of domestic violence or violence to children this principle takes a back seat to the question of whether the child needs to be protected.

Taking effect of Court orders

The Domestic Violence Act, 1996 provides that any Order made under the Act will take effect by oral notification to the respondent and the provision of a copy of the Court order.
In fact if the respondent is in Court when the order is made this is deemed to be valid notification.

Penalties for Breach of Barring Orders

The penalties for breaching Court orders made under the Domestic Violence Act, 1996 include
• A fine not exceeding £1,500 (approx. €1,905) and/or 12 months imprisonment and is a criminal offence.

In addition the Court has discretion to convict for contempt of Court and breach of an Order may lead to liability in any civil legal proceedings brought.

Update August 2011-Civil Law (Miscellaneous Provisions) Act, 2011

The Civil Law (Miscellaneous Provisions) Act 2011 has made significant changes to the Domestic Violence Act 1996.

Prior to the enactment of this legislation an applicant for a safety order who was a cohabitant ( that is, not a spouse) had to have lived as husband and wife with the partner for a period of 6 out of the previous 12 months.

The requirement now as a result of the Civil Law (Miscellaneous Provisions) Act 2011 is for the applicant who:

(ii) is not the spouse or civil partner within the meaning of the Act of 2010 of the respondent and is not related to the respondent within the prohibited degrees of relationship, but lived with the respondent in an intimate and committed relationship prior to the application for the safety order, or..

The effect of this change is that there is no specific requirement of living together for a particular period of time required. Now it is only necessary to show that the applicant:

lived with the respondent in an intimate and committed relationship prior to the application for the safety order.

The Family Law Courts in Ireland have considerable powers to make additional orders, called ancillary orders, in divorce and judicial separation proceedings under the Judicial Separation and Family Law Reform Act, 1989 , the Family Law Act, 1995 (judicial separation proceedings) and the Family Law (Divorce) Act, 1996 (divorce proceedings).

The main factor determining these orders is the need to make “proper provision” for spouses and dependent members of the family.

The Courts also have the power to make preliminary orders in relation to judicial separation and divorce proceedings and these will be granted before the full hearing involving divorce or judicial separation.

An example of such a preliminary order is called a maintenance pending suit order which allows for maintenance payments to be made prior to the hearing of the divorce or Judicial separation proceedings. Domestic violence can also be dealt with through a preliminary order.

Custody and access orders

Custody and access arguments can be dealt with by way of preliminary order also as well as at the substantive hearing of the proceedings. Remember though that orders concerning access and custody can be obtained even where divorce or judicial separation proceedings are not contemplated under the Guardianship of Infants Act 1964.

It is worth noting also that even where divorce takes place a divorced person can still avail of relief under the Domestic Violence Act, 1996 even though ordinarily the person would not be considered to be a spouse in the eyes of the law once the decree of divorce is granted.

Financial Provision on Marriage Breakdown

Financial provision can be made on the breakdown of a marriage under the following broad headings:

maintenance

property

succession.

Maintenance

The common law duty for spouses to maintain one another is continued in the legislation covering marital breakdown and survives the ending of the marriage. The liability to maintain a former spouse only ends when that spouse dies or remarries.

This duty continues despite the execution of a separation agreement or an order of judicial separation or divorce.

Three types of maintenance order can be made under the Family Law Act, 1995:

a periodical payments order

a secured periodical payments order

a lump sum payment order.

The Family Law Act, 1995 also allows a court to make an attachment of earnings order at the same time as the making of a periodical payments order without any default in payment having taken place.

All ancillary relief orders will be granted by the Court in the light of ‘proper provision for each spouse and for any dependent member of the family…’

Property-The Family Home

The Family Home Protection Act 1976 describes the family home as “primarily a dwelling in which a married couple ordinarily reside”.

When a marriage breaks down in Ireland and divorce or judicial separation proceedings are instituted the family home will loom large in considerations as for many couples it is the principal or only asset that they have.

Property Adjustment Orders and Preliminary Orders

Courts can make property adjustment orders in separation or divorce proceedings; in fact they can also make preliminary orders in respect of the family home which are orders which predate the hearing of the legal proceedings.

Courts have the power to make the following orders on separation or divorce :

I. Preliminary orders (effective until the hearing of the judicial separation or divorce proceedings)

II Property adjustment orders

1. The property to be transferred from one spouse to another or to another person

2. The reduction or extinguishment of any interest that a spouse has in the property

3. The settlement of the property to either spouse

However no order can be made in favour of a spouse who remarries and an application for a property adjustment order must be made during the lifetime of the other spouse.

The Courts can also order the sale of the family home but cannot do so if one of the spouses remarries and is living in the home with his/her new spouse.

All property adjustment orders can be varied except an order directing the sale of the family home and this has been carried out.

Property adjustment orders can also be made in respect of all types of property, not just the family home.

Succession rights

A spouse has an entitlement under the Succession Act, 1965 to one half (if there is no children) or one third (if there is children) of the deceased spouse’s estate.

However the Judicial Separation and Family Law Reform act 1989 allowed for the first time the extinguishment of the share to which the spouse would be entitled under the Succession Act, 1965 but only provided proper provision has been made for the spouse losing their succession entitlements.

This of course only applies in Judicial Separation cases as in divorce cases the “spouse” is no longer a “spouse” after divorce and loses Succession Act entitlements automatically.

However the Court will generally make allowance for this loss by making what it considers the necessary ancillary orders on granting a decree of divorce.

Pension adjustment orders

The Family Law Act, 1995 allows the making of a pension adjustment order which aims to allow the distribution of pension benefits by disregarding the terms of the pension scheme and either party can apply for this order.

However if you remarry you are prevented from applying for such an order.

It is important to note that any attempt by a separating couple to divide the benefits of a pension scheme between them will not work and will have no effect. Regardless of what an individual member of a pension scheme wants, the trustees of the scheme are obliged to be bound by the terms of the scheme.

If the parties come to agreement in relation to the pension then they will need an order of Court to effect that agreement and this can only be done after the granting of a decree of divorce or judicial separation by way of an order of Court.

If separating couples execute a deed of separation between themselves then they are depriving the Court of making an order in respect of the pension.

The recommended procedure would be to agree the terms of agreement between spouses, issue proceedings under the Judicial Separation and Family Law Reform Act, 1989 and an application to have the settlement terms made an order of Court and the relevant pension adjustment order made on consent.

Factors the Court Considers When Making Orders on Divorce and Judicial Separation

The factors the Court will consider when making these orders are

I. The actual and potential financial resources of both spouses

II. The actual and likely financial needs, obligations and responsibilities of both spouses

III. The standard of living of the spouses before the separation or divorce

IV. The length of marriage and the ages of the spouses

V. Spousal contributions-this is increasing in importance in the Court’s considerations and looks at not just financial contributions but time spent looking after home and family

VI. Earning capacity or lack of it due to time spent in the home due to marital responsibilities and the lack of future earning capacity due to the sacrifice of career made during marriage

VII. Statutory entitlements-any benefit or income either spouse is entitled to in law

VIII. Conduct-this is not a hugely important factor unless the conduct is egregious

IX. The accommodation needs of both spouses

X. Any separation agreement entered into by the spouses and which is still in effect

All of these factors will be considered under the overarching goal of attempting to ensure proper provision is made for both the spouse and any dependent members of the family.

It is noteworthy that even where there is a full and final settlement clause in the divorce the Courts can still make a change to any maintenance order as in Irish law there is really no “clean break”.

Procedure in the Circuit Court and High Court

The Circuit Court and the High Court have jurisdiction to hear

applications for divorce

decrees of judicial separation

applications for orders under the Family Law Act, 1995

applications for decrees of nullity.

Most of these proceedings will be commenced with a Family Law Civil Bill (Circuit Court) or Family Law Summons (High Court).

Where financial relief is sought it will be necessary to file an Affidavit of Means. Where there are dependent children involved, regardless of whether financial relief is sought, an Affidavit of Welfare must be sworn and filed.

Discovery

Discovery is the procedure whereby both parties obtain full and detailed information about the other’s income, debts, assets, and liabilities. There are strict rules in the Circuit Court and High Court in relation to discovery.
By Terry GorryGoogle+

The Social Welfare act, 1993 obliges both spouses in a marriage to provide financial support for each other and their children. This is called maintenance.

Maintenance is also known as periodical payments orders after a divorce or judicial separation.

The Family Law (Maintenance of Spouses and Children) act 1976 governs the making of maintenance orders or periodical payments orders in Ireland.

Provision must be made for dependent children of the family and this includes children of both spouses or of either spouse. A dependent child is one who is under the age of 18 or 23 if in full time education.

Maintenance of Children

The Status of Children Act 1987 obliges the maintenance of non marital children. In fact, both parents, regardless of their marital status-unmarried, married, separated, divorced-have an obligation to maintain their children financially.

In practice, this usually involves the parent who does not have custody paying maintenance to the parent who has day to day care and control of the children-custody. Because the parent who has custody has the day to day costs associated with the children.

Qualified cohabitants, in certain circumstances such as where the relationship ends through death or separation. However there is no automatic right to such orders or any financial relief-the Court will decide based on the circumstances.

A Maintenance Order

To apply for a maintenance order under the Family Law (Maintenance of Spouses and Children) act 1976 you must be a spouse and there is facility to apply for an interim maintenance order prior to the hearing of the application for a maintenance order.

A maintenance order compels a spouse to make periodic payments to the other spouse. The amount and times of payment will be directed by the family law Court.

5.—(1) (a) Subject to subsection (4) of this section, where it appears to the Court, on application to it by a spouse, that the other spouse has failed to provide such maintenance for the applicant spouse and any dependent children of the family as is proper in the circumstances, the Court may make an order (in this Act referred to as a maintenance order) that the other spouse make to the applicant spouse periodical payments, for the support of the applicant spouse and of each of the dependent children of the family, for such period during the lifetime of the applicant spouse, of such amount and at such times, as the Court may consider proper.

(b) Subject to subsection (4) of this section, where a spouse—

(i) is dead,

(ii) has deserted, or has been deserted by, the other spouse, or

(iii) is living separately and apart from the other spouse,

and there are dependent children of the family (not being children who are being fully maintained by either spouse), then, if it appears to the Court, on application to it by any person, that the surviving spouse or, as the case may be, either spouse has failed to provide such maintenance for any dependent children of the family as is proper in the circumstances, the Court may make an order (in this Act referred to as a maintenance order) that that spouse make to that person periodical payments, for the support of each of those dependent children, for such period during the lifetime of that person, of such amount and at such times, as the Court may consider proper.

(c) A maintenance order or a variation order shall specify each part of a payment under the order that is for the support of a dependent child and may specify the period during the lifetime of the person applying for the order for which so much of a payment under the order as is for the support of a dependent child shall be made.

(2) The Court shall not make a maintenance order for the support of a spouse where the spouse has deserted and continues to desert the other spouse.

(3) Where the applicant spouse has committed adultery, then-

(a) if the other spouse has condoned or connived at, or by wilful neglect or misconduct conduced to, the adultery, the adultery shall not be a ground on which the Court may refuse to make a maintenance order for the support of the applicant spouse,

(b) if the other spouse has not condoned or connived at, or by wilful neglect or misconduct conduced to, the adultery, the Court may, notwithstanding the adultery, make a maintenance order for the support of the applicant spouse in any case where, having regard to all the circumstances (including the conduct of the other spouse), the Court considers it proper to do so.

(4) The Court, in deciding whether to make a maintenance order and, if it decides to do so, in determining the amount of any payment, shall have regard to all the circumstances of the case and, in particular, to the following matters—

(a) the income, earning capacity (if any), property and other financial resources of the spouses and of any dependent children of the family, including income or benefits to which either spouse or any such children are entitled by or under statute, and

(b) the financial and other responsibilities of the spouses towards each other and towards any dependent children of the family and the needs of any such dependent children, including the need for care and attention.

You will have to show that the other spouse has failed to provide proper maintenance in the circumstances and ultimately the Court will decide what is appropriate in each case. It is not necessary that the spouses are living apart.

A maintenance order can be varied (changed) or discharged after one year where there is a good record of payment.

How is the amount of maintenance calculated?

Firstly, a Court will only make an order for maintenance where the respondent spouse has failed to make proper provision in the circumstances of the case.

To decide on the amount of any order the Court will look at

I. The income, earning capacity and financial resources of both parties and their dependent children

II. The financial responsibilities of both parties

III. The conduct of both parties (less important now as “need” is the principle criterion)

So, it will boil down to the needs of the applicant spouse and children and the resources of the respondent spouse.

The overall goal of the Court will be to make proper provision in each case and will have to balance the needs of one party and the children against the resources of the other spouse.

Generally if one spouse is involved in another relationship this too will be taken into account. Variation of maintenance orders can be obtained if circumstances change significantly and there is also provision for lump sum payments to be made although the max. that the District Court can order is €6,348.69.

The leading case dealing with the criteria to decide on the amount of a maintenance order is R.H. v N.H. 1986 which set out

after separation, there are two households

the Court must look at the minimum reasonable requirements of the dependent spouse and children

the Court must look at the income and/or earning capacity of the dependent spouse

the Court must find out the net income of the dependent spouse (if there is assets generating little income the Court will order these to be sold)

the Court must find out the minimum reasonable requirements of the respondent spouse. This is the most important factor-the ability of the respondent to pay.

Generally, second relationships and the income or expense of that relationship is taken into account in making an order for maintenance.

Spousal conduct can lead to a spouse being barred from obtaining a maintenance order in respect of him/herself but will still be able to get one in respect of children.

The Status of Children Act, 1987 allows a parent to apply for maintenance against the other parent in respect of the child where the child is born outside marriage.

The Family Law Act, 1995 provides for the making of lump sum payments which can be made in addition to or instead of periodical payments. The maximum allowable in the District Court is €6,348.69.

Maintenance Agreements

Parties can reach agreement themselves in respect of maintenance. This can be simply in respect of maintenance or as part of a separation agreement. However, the parties can still go back to Court and cannot exclude the operation of the Family Law (Maintenance of Spouses and Children) act 1976. The 1976 Act also allows any agreement to be made a rule of Court, provided it is ‘fair and reasonable’.

The max. payment that the District Court can order by way of maintenance orders is €150 per week per child and €500 for the spouse. The Circuit Court has unlimited jurisdiction.

But regardless of the formalities of divorce or judicial separation each spouse can enter into an agreement to provide for each other and dependent children. It is important to note though that even if parties do come to an agreement themselves neither party is prevented from going back to Court to seek an order for maintenance as there is no “clean break” recognized in Irish family law.

If the party who is obliged to pay maintenance refuses to do so there are various mechanisms which are intended to remedy this problem such as attachment of earnings orders and the Enforcement of Court Orders Act, 1940 or ordinary debt collection proceedings as the Enforcement of Court orders Act, 1940 only allows you to claim 6 months arrears maximum.

However, arrears going back further than 6 months can be pursued through ordinary debt collection proceedings.

In fact, the Family Law Act, 1995 provides that an attachment of earnings order will be automatically made on the granting of a maintenance order unless the respondent spouse can prove to the Court that he/she will make the payments without the necessity for it.

Maintenance Orders Made Abroad

Maintenance orders made abroad can be enforced in Ireland.

For example, the Maintenance Orders Act, 1974 allows the enforcement of orders made in the UK and the enforcement of orders made here in the UK. The Jurisdiction of Courts and Enforcement of Judgments Act, 1998 allows the enforcement of maintenance orders throughout the European Union. The Maintenance Act, 1994 provides for the enforcement of maintenance orders made in a wider range of countries than just the EU.

How to Apply for a Maintenance Order

Most maintenance applications will be brought in the District Court,unless a higher court is dealing with a related judicial separation or divorce proceeding.

You need to issue and serve a maintenance summons on the other parent. The form is 54.1/54.2/54.3,54.4/54.11. You can do this yourself or engage a solicitor.

There are now two ways to legally end a marriage in Ireland-divorce and judicial separation. The Judicial Separation and Family Law Reform Act 1989 gives the Court wide discretion to make orders in relation to the granting of a decree of judicial separation.

One significant difference between divorce and judicial separation in Ireland is the element of “fault”-there is no requirement to show fault on behalf of one of the parties in a divorce decree but there may be such a requirement to obtain a decree of judicial separation, depending on which of the 6 grounds you choose.

Other differences between divorce and judicial separation are:

a divorce allows both parties to remarry, while judicial separation does not

the arrangements between the parties in a judicial separation may be reviewed and changed when a Judge is being asked to grant a divorce.

The grounds for judicial separation

The Judicial Separation and Family Law Reform Act 1989 provides 6 grounds for the granting of judicial separation by either the Circuit Court or High Court.

1. Adultery

Adultery is a ground for judicial separation and while it can be difficult to prove, it can be inferred from the circumstances.

2. Behaviour

The behaviour of one of the parties which renders it impossible for the other party to live with the offending party is also a ground. Physical and mental cruelty provides the basis of this reason for judicial separation.

3. Desertion

Desertion by one of the parties is another ground but it must be for a period of at least one year and continuous. Constructive desertion, where one party deserts because of the bad behaviour of the other party, is included in this ground for a decree.

4. The parties agree and have lived apart for at least 1 year

The living apart must be continuous and the reasons for doing so are irrelevant provided both parties agree to judicial separation.

5. Normal marital relationship has not existed for at least 1 year

Where a normal marital relationship has not existed for at least 1 year and regardless of the presence of fault, a Court may grant a decree under this heading. There is no definition of what a ‘normal marital relationship’ in the legislation.

Nevertheless, this is the most common basis for the grant of a decree of judicial separation.

6. The parties have lived apart for at least 3 years

Under this ground there is no need to show fault-this is a useful ground where there is no fault and the other party will not consent.

Note: the advantage of applying for a decree of judicial separation on the grounds of adultery or cruelty (numbers 1 and 2 above) is the applicant spouse does not have to wait 1 year to issue proceedings.

Welfare of children in Judicial Separation

Once one of the six grounds for judicial separation outlined above is proven on the balance of probabilities a court will grant a decree of judicial separation PROVIDED the welfare of any dependent children of the marriage has been provided for.

A dependent child is a child who has not reached the age of 18 or the age of 23 if in full time education.

Welfare is concerned with the religious, moral, intellectual, social and physical welfare of the dependent child.

3.—(1) Where, on an application under section 2 of this Act, the court is satisfied that any of the grounds referred to in subsection (1) of that section which have been relied on by the applicant have been proved on the balance of probabilities, the court shall, subject to subsection (2) of this section and sections 5 and 6 of this Act, grant a decree of judicial separation in respect of the spouses concerned.

(2) (a) Where there are, in respect of the spouses concerned, any dependent children of the family, the court shall not grant a decree of judicial separation unless the court—

(i) is satisfied that such provision has been made, or

(ii) intends by order upon the granting of the decree to make such provision,

for the welfare of those children as is proper in the circumstances.

(b) In this subsection—

“dependent children of the family” has the same meaning as it has for the purposes of Part II of this Act;

“welfare” comprises the religious and moral, intellectual, physical and social welfare of the children concerned.

(3) Upon the granting of a decree of judicial separation by the court, the court may, where appropriate, by order give such directions under section 11 of the Guardianship of Infants Act, 1964 , as it thinks proper regarding the welfare or custody of, or right of access to, an infant (being an infant within the meaning of that Act) as if an application had been made under that section.

Solicitors obligations

A solicitor involved in judicial separation proceedings is obliged by law to discuss with his/her client the possibility of reconciliation and mediation and negotiation of a separation agreement satisfactory to both parties.

If the Court is satisfied that all of this has occurred it may grant a decree of judicial separation and once this is done the court may make further ancillary relief orders which we look at elsewhere on this site.

Judicial Separation and Separation Agreements

Separation agreements drawn up and agreed between parties and Judicial Separation are very different animals with one significant factor that you must be aware of..

Since a decision of the Supreme Court in 1998 in P.O’D v A.O’D a separation agreement agreed between 2 parties is a bar to the subsequent obtaining of a Judicial separation.

The hugely significant factor in this decision is that without a Judicial separation you are not entitled to look for any of the large range of property and financial reliefs under the Family Law Act, 1995.

The reason for this is that the Supreme Court held that it would not be right to go behind the separation agreement freely entered into by two consenting adults by one of the parties seeking a Judicial separation which would have the effect of tearing up the separation negotiated and entered into freely by both parties.

However a separation agreement cannot act as an impediment to seeking relief in maintenance proceedings under the Family Law Act 1976 (Maintenance of Spouses and Children) nor can it prevent divorce proceedings from being instituted.

However any subsequent divorce proceedings will be heavily influenced by the separation agreement entered into by the parties.

Many people require subsidized legal aid for family law problems and there are two panels of solicitors maintained by the Civil Legal Aid board for family law matters.

One panel deals with divorce and separation cases and the other panel, the District Court panel of solicitor’s scheme, deals with maintenance, domestic violence, custody, guardianship and access.

The District Court scheme requires that you make an application to your local family law centre to bring proceedings in the District Court under one of the headings of guardianship, access, domestic violence, maintenance and custody. If you are deemed to be eligible (income under €18,000 per annum and your case must have merit) then the family law centre will issue you with a legal aid certificate.

Once you are granted this legal aid certificate you will normally be given the list of solicitors on the family law District Court panel and asked to choose one to act for you.

You then give part III and part IV of the legal aid certificate to the solicitor and this will set out what legal action is authorised on your behalf. Your solicitor will then act on your behalf and institute the proceedings that he/she is authorised for.

Financial eligibility for civil legal aid

To qualify for civil legal aid your annual income must be less than €18,000 and your capital resources (such as property) must be less than €320,000. You must make a contribution to the cost of this service and this will range from €10 for legal advice and €50 for legal aid.

Merit of your case

Your case must have merit also and this is a matter for the family law centre to decide.

Your first step in this process is to call to your local law centre and make an application. Here is a link to a list of these law centres listed by county.

Terry Gorry & Co. Solicitors is on the panel of solicitors for the District Court scheme and is eligible to provide services in Dublin, Kildare, Meath and Westmeath.

However it has been held that non marital children have the same ‘natural and imprescriptible rights’ as marital children under article 42 of the Constitution.

Unlike the rights of the family under article 41 of the Constitution, the rights of the non-marital mother to the custody and care of her child can be transferred or lost if she abdicates her rights and duties to the child.

However, the non-marital father has no such constitutional rights and has no natural rights to the custody of the child (unlike the non-marital mother).

Before the Status of Children Act, 1987 a non-marital child was ‘illegitimate’ and could not be legitimated even if the parents married. The Status of Children Act, 1987 provides that the ‘illegitimate’ child becomes legitimate once the parents marry.

Guardianship

Prior to the Status of Children Act, 1987 the guardian of a non-marital child was the natural mother. After the passing of this act, a father can now apply to be made a joint guardian with the natural mother under section 12.

A father can also become a guardian under an informal procedure provided by the Children Act, 1997 provided the mother agrees. This involves a statutory declaration signed by both parties.

Guardianship means that a guardian must be consulted in relation to all aspects of the child’s upbringing.

All applications for guardianship will be considered in the light of the welfare of the child as set out in the Guardianship of Infants Act, 1964.

The non-marital father can apply to Court to become a guardian under section 6 A of the Guardianship of Infants Act, 1964.

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Maintenance

An unmarried man or woman has no legal entitlement to seek maintenance from the other party for him/herself. However, he/she can seek maintenance for the support of the children (Family Law (Maintenance of Spouses and Children) Act, 1976)

The Status of Children Act, 1987 provides that a maintenance order cannot be made against a person unless it is proved on the balance of probabilities that the person is the parent.

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Succession

Since June, 1988, thanks to the Status of Children Act, 1987 children born outside of marriage have the same succession rights as marital children.

This means that a child born outside marriage can bring legal proceedings challenging a parent’s will if s/he is disappointed and can claim a share of the parent’s estate where there is no will.

It is strongly advisable for a single mother to make a will nominating guardians in the event of her death. If she doesn’t, the child will have no guardian.

The Status of Children Act, 1987 also provides for declarations of parentage. These types of declarations are important in probate cases.

Where parentage is in question, Courts can order the taking of blood tests or DNA tests.

The Status of Children Act, 1987 also introduced a presumption of paternity. This means that it is presumed that the father of a married woman’s children is her husband. However, this presumption can be rebutted with the appropriate evidence.

The Domestic Violence Act, 1996 extended the protection of barring and protection orders to cohabitees.

An unmarried person does not enjoy the protection of the Family Home Protection Act, 1976. Property disputes between an unmarried couple cannot be pursued within the family law Courts.

Cohabitation agreements and non-marital contracts are not recognised in Irish law as they are seen as contrary to public policy. However agreements regulating financial and property matters are enforceable as long as they are not conditional on the parties performing ‘marital duties’.

Separation agreements in family law in Ireland are agreements drawn up by the parties to a broken down marriage who wish to avoid the Courts to resolve their differences.

Terms of separation agreements

Most separation agreements will deal with an agreement for the parties to live apart and further matters commonly covered will include access to children if any, maintenance, custody, division of property and any other relevant matters that the parties wish to commit to writing.

The agreement to live apart should contain a date when this will commence as this date will be important if either party wishes subsequently to obtain a divorce.

Non molestation

A common clause in separation agreements is a “non-molestation clause” which simply prevents the disturbance or annoyance of one party by the other after execution of the agreement.

Custody and guardianship

The issues of access and custody where there are children under 18 are important matters to cover and agreement may have been agreed between the parties about sole or joint custody.

Matters in this section may also deal with bringing a child abroad and out of the jurisdiction and detailed arrangements for access.

Remember that even where parties separate both married parents remain joint guardians of children under 18.

Property

Matrimonial property is obviously a big issue to be dealt with in separation agreements. Common situations include one of the parties staying in the family home, perhaps until children reach the age of 18, and then the home being sold and proceeds split.

An alternative is for one party to buy out the other party’s interest in the property and become the sole owner on payment of an agreed lump sum.

Maintenance

A separation agreement should make provision for the payment of maintenance by one spouse to another and this will normally be the subject of extensive negotiations.

The existence of agreement in relation to maintenance does not prevent a spouse from going to the District court to seek a maintenance order under the Family law act, 1976. However the Court will consider the existence of the separation agreement terms which deal with maintenance in any order it might make.

Other matters that might be considered for inclusion in any separation agreement include

Taxation-the receipt of maintenance by the custodial parent is taxable so the question of election to be taxed as a single person or jointly might be considered. The receipt of maintenance designated for the support of children is not taxable though.

Succession rights-the parties may renounce their succession rights to their share of the estate of the other party under the Succession Act 1965

Pensions-pensions in a separation agreement can be a complex issue and you would be well advised to take taxation advice if the pension is substantial

An indemnity-most agreements will have a clause which indemnifies each party against any debts subsequently incurred by each party.

The separation agreement can be made a rule of Court-the advantage of this is that any failure to uphold the agreement can be remedied by going into Court for a contempt of Court ruling. In addition any maintenance payments can be made through the District Court clerk which will afford a greater degree of security when it comes to enforcing any failure to pay.

Separation Agreements and Future Legal Proceedings

As a separation agreement is a binding contract, subsequent judicial separation proceedings under the Judicial Separation and Family Law Reform Act, 1989 are not possible.

This means that a spouse is precluded from seeking the extensive range of financial and property reliefs available under the Family Law Act, 1995. A pension adjustment order is also out of the question as this is granted under the Family Law Act, 1995.

Separation Agreements and Divorce Proceedings

However a separation agreement is not a bar to subsequent divorce proceedings under the Family Law (Divorce) Act 1996 and in deciding upon divorce proceedings the Court will have to “have regard” for the terms of any separation agreement.

The difficulty can arise though where divorce proceedings are brought some time after the separation agreement has been entered into and the financial fortunes of either or both parties have changed significantly.

In K v K [2003] High Court decided that the Court had to decide what was “proper provision” at the date of divorce, not the date of the separation agreement and this can lead to a significant redistribution of the assets.

In circumstances where the separation agreement precedes the divorce proceedings fairly recently in time then there probably will not be any reason for a significant departure from the provisions of the separation agreement (unless of course there has been a material change in financial circumstances of the parties).

In M.P. v A.P. 2005 High Court the Court held that the weight to be placed on a Judicial Separation Consent Agreement in divorce proceedings will depend on

The length of time since agreement was reached;

The financial background pertaining to the Consent Agreement;

The reasonable expectation of the parties.

If your marriage has broken down you should consult a solicitor who will explain the various options open to you and any pitfalls to avoid.

Full and Final Settlement in Separation Agreements

Does a ‘full and final settlement’ in a deed of separation or on Consent Terms in a judicial separation actually mean what it says? In other words, can either party get a ‘second bit of the cherry’ at the time of divorce?

(3) In deciding whether to make an order under a provision referred to in subsection (1) and in determining the provisions of such an order, the court shall have regard to the terms of any separation agreement which has been entered into by the spouses and is still in force.

However, this does not prevent Courts from making further additional provision to ensure ‘proper provision’ for spouses and dependent children as has been seen in various decided cases and the Supreme Court has found that Courts have ‘very broad discretion’ in these cases.